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Research On The Burden Of Proof In The Medical Tort Suit

Posted on:2020-05-08Degree:MasterType:Thesis
Country:ChinaCandidate:R R GuoFull Text:PDF
Abstract/Summary:PDF Full Text Request
In the field of medical tort litigation,due to the scientific,complex,professional and doctor-patient relationship particularity of the diagnosis and treatment industry,the distribution of the burden of proof has a key impact on the substantive rights of both sides,and higher requirements are put forward for the distribution of the burden of proof.In 2002,several provisions of the supreme people's court on evidence in civil litigation,2009 tort liability law,2018,judicial interpretation of the supreme people's court on medical damage liability disputes and other laws and regulations,the rules on whether to apply inverted proof or fault proof in medical tort litigation are constantly changing.The distribution of burden of proof plays an important role in the adjustment and regulation of doctor-patient relationship and the progress of diagnosis and treatment technology.After stipulating the mitigation system of burden of proof,the burden of proof mainly brought by patients is alleviated to a certain extent.The reasonable distribution system plays a role of carrying forward the litigation,balancing the adverse position of patients on the one hand,and laying a good foundation for the trial of litigation on the other hand.While talking about the distribution of burden of proof,we should not ignore the causes of the situation to be distributed and the connection between subsequent trials.The construction of relevant systems is extremely important.Most of the previous studies on the burden of proof have discussed who should bear the burden of proof,without considering the reasons why it is difficult to distribute the burden of proof in medical tort litigation.As a result,the burden of proof is Shared back and forth among different subjects,which leads to the phenomenon of judicial inconsistency in the changing stage.This paper consists of five parts.The first part is the literature review of the whole paper,expounding the purpose,value and method of the research.The second part introduces relevant concepts,explains the meaning and characteristics of medical tort,explains the concept and classification of burden of proof,and explains the importance of medical tort burden of proof.The third part first combed the different period of our country the development of medical tort burden distribution,in medical tort lawsuit,the allocation of burden of proof is not immutable,first by patients,and is required to do,the third stage patients back to proof is given priority to,prescriptions and burden of proof on some facts obligation,and patients with ease when not system of evidence.By comparing the three stages of the burden of proof is different and the cause of the change,the problems in the cases are analyzed in detail,puts forward the existing distribution of burden of proof is the introduction of the advantages of moderate system,points out that the instability of distribution of evidential burden can bring adverse effect to justice,I think it's difficult to solve the proof approach can not only transform the responsibility main body,also can find proof difficult reason,origin which patients for medical record is not standard,don't open,don't trust,etc.,thus to see the importance of medical records on distribution of burden of proof;Fourth part model the countries outside of the relevant system,introduced the United States,Germany,Japan in medical tort cases the judge's concrete practice,when the fact is difficult to decided to allocate the burden of proof to the judge and jury,let them according to certain rules to make judgments,greatly reduce the pressure of litigation of the parties,this table see proof such as value,and act as a deterrent to judge in medical tort lawsuit use discretion.The fifth part,based on the above analysis,puts forward Suggestions on fault and causality,the establishment of doctor-patient mutual trust,the improvement of medical appraisal system and the establishment of free evidence principle based on "apparent proof",and makes specific elaboration,hoping to help improve the distribution system of burden of proof in medical tort litigation.
Keywords/Search Tags:medical infringement, Lawsuit, Burden of proof, Distribution of legal liability
PDF Full Text Request
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